At midnight on Wednesday, the Supreme Court allowed a Texas law that effectively bans all abortions after six weeks of pregnancy to take effect.
Twenty-four hours later, the Court released a brief, one-paragraph order explaining why it did so — though it is a stretch to describe the Court’s short and thinly reasoned order as an “explanation”. The vote in Whole Woman’s Health v. Jackson was 5-4, with conservative Chief Justice John Roberts crossing over to vote with the three liberal justices.
The implications of this order are breathtaking. The Texas law violates the precedent established in Planned Parenthood v. Casey (1992), which protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.” The sixth week of gestation is so early in a pregnancy that many people aren’t even aware they are pregnant.
At least 85 percent of abortions in Texas take place after the sixth week of pregnancy, according to the abortion providers who sued to block Texas’s law, SB 8. All of those abortions are now illegal in the state.
But the implications of the Court’s decision in Whole Woman’s Health stretch further.
SB 8 relies on a highly unusual enforcement mechanism. No state officer is permitted to enforce the statute. Instead, the law permits “any person, other than an officer or employee of a state or local governmental entity in this state” to file a lawsuit against an abortion provider or anyone who “aids or abets the performance or inducement of an abortion.” A plaintiff who prevails in such a lawsuit is entitled to bounty of at least $10,000, paid by the person they sued.
As Justice Sonia Sotomayor explains in one of four opinions filed by the dissenting justices, Texas lawmakers “fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law.” So if no state officer can enforce the law, it is unclear whether anyone can be sued to block it.
The Supreme Court’s order, joined by the five most conservative justices, effectively blesses this method of evading judicial review.
But if Texas can avoid a court order blocking its anti-abortion law by delegating enforcement of the law to private bounty hunters, so can any other state. Indeed, nothing in the Court’s order prevents another state from passing a law banning all abortions — provided that the law is enforced using SB 8-style private lawsuits.
Some states, including Florida, are already considering legislation similar to SB 8.
NEW: Florida Senate President Wilton Simpson tells me “there is no question” the Florida legislature will consider an abortion heartbeat bill like Texas’ in this upcoming session.— Evan Donovan (@EvanDonovan) September 2, 2021
“It’s something we’re already working on.”
More tonight on @WFLA at 4/5/6https://t.co/qBaRRHRCUm
Allowing a law to stand that violates the Supreme Court’s 1992 Planned Parenthood v. Casey decision means that the constitutional right to an abortion is effectively dead. States now have the power to ban abortion for the first time since the Roe v. Wade ruling was handed down in 1973.
While it is theoretically possible that the Court could reverse course in subsequent litigation and strike down SB 8, the sort of justices who would allow such a law to take effect are exceedingly unlikely to do so. And the Court is already planning to hear a case in its next term, Dobbs v. Jackson Women’s Health Organization, which it can use to overrule Roe explicitly.
The right to an abortion was killed in a one-paragraph order in a case that arose on the Supreme Court’s “shadow docket,” a mix of emergency motions and other decisions that receive only cursory briefing and no oral argument. The justices took action after considering the case for less than three days.
Whole Woman’s Health, in other words, is a sea change in the Court’s approach to not only abortion rights but also all other litigation.
The Court has now signaled that it will permit states to enact laws that were intentionally drafted to frustrate judicial review, at least if a majority of the Court agrees with what that law is trying to accomplish. And it handed down one of the most monumental decisions of our era — a decision effectively overturning Roe v. Wade — in a shadow docket order that offers virtually no reasoning.
Texas designed SB 8 to frustrate judicial review
The reason why SB 8 can only be enforced by private lawsuits brought by individuals who are not employed by the state of Texas is that this structure makes it very difficult to challenge the law in federal court.
Under a doctrine known as “sovereign immunity,” private parties typically cannot sue states directly. In Ex Parte Young (1908), however, the Supreme Court held that a private party who wishes to block a state law may sue the state officer charged with enforcing that law. So, for example, if Texas had enacted a law permitting its attorney general to prosecute abortion providers, an abortion provider could sue the attorney general in federal court and seek a court order blocking that law.
But SB 8 states that it “shall be enforced exclusively through … private civil actions.” State officers and employees are explicitly forbidden from enforcing the law. So, it’s not at all clear who the appropriate defendant is in a federal lawsuit attempting to block SB 8.
It’s worth noting that, even after the Supreme Court’s decision that effectively endorses this method of dodging judicial review, abortion providers still have a way to challenge the state law. They can violate it, wait for someone to sue them, and then argue in that lawsuit that SB 8 is unconstitutional.
But here’s the rub: Under SB 8, “any person” except for a state employee may bring a lawsuit against an abortion provider. That lawsuit may be filed in any number of different Texas state courts, including a trial court in the same county where the plaintiff resides (assuming the plaintiff lives in Texas).
That means anyone who is even suspected of performing an abortion after the sixth week of pregnancy can be hauled into court at any time, in nearly any venue in the state, and potentially by hundreds or even thousands of different litigants. The abortion provider will then have to hire a lawyer and defend itself against all of those lawsuits. And if it loses just one, it will have to pay a bounty of “not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter.”
It’s worth emphasizing the words “not less than.” A judge with particularly strong anti-abortion views might award a bounty of $20,000, or $50,000, or $18 million.
The law also subjects anyone who “aided or abetted” an abortion after the sixth week of pregnancy to similar penalties — a term that’s not defined in the statute but could be construed to endanger parties who have exceedingly loose ties to an abortion clinic. As NYU School of Law professor Melissa Murray recently noted, even an Uber driver who gives a pregnant woman a ride to a clinic may be vulnerable to suit.
SB 8, in other words, is likely to subject abortion providers (and maybe even Uber drivers) to a blizzard of lawsuits that they cannot possibly afford to defend themselves against, even if they ultimately prevail in each case. And should an abortion provider lose even one case, they could face truly draconian financial sanctions.
For these reasons, many abortion clinics in Texas have simply stopped providing abortions. As Justice Stephen Breyer notes in his dissenting opinion, “One of the clinic applicants has stated on its website that ‘[d]ue to Texas’ SB 8 law,’ it is ‘unable to provide abortion procedures at this time.’” Others may try to provide abortions prior to the sixth week of pregnancy, but they do so at tremendous risk.
The law normally prevents situations like this by allowing a party who faces an imminent risk of legal harm to sue to block a law before it is brought to bear against them. But, of course, SB 8 was drafted to frustrate such lawsuits. And the Supreme Court has now endorsed Texas’s effort to frustrate a pre-enforcement lawsuit.
How the Supreme Court explains itself in Whole Woman’s Health
There is one potential flaw in Texas’s scheme to prevent anyone from challenging SB 8 before it took effect. The law is enforced by private parties bringing lawsuits wherein a Texas state judge may award bounties against abortion providers. But state judges are state officers charged with enforcing SB 8, which means they could conceivably be sued.
And that’s exactly what the plaintiffs in Whole Woman’s Health did, adding a Texas judge and a Texas court clerk to the list of defendants in their lawsuit.
One potential problem with this approach, however, is that suits against judges are typically disfavored — though they are not absolutely forbidden. As the five most conservative justices correctly note in their Whole Woman’s Health order, it is not entirely clear whether “under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.”
Indeed, that is the crux of the majority’s reasoning in Whole Woman’s Health. It is unclear whether private suits against Texas judges are allowed, so it’s not appropriate for the Supreme Court to order those judges not to enforce SB 8.
But here’s the thing: Yes, it is true that current Supreme Court precedent is unclear about when state court judges may be sued in federal court. But do you know who is allowed to issue binding decisions interpreting previous Supreme Court decisions? The Supreme Court of the United States. That’s the whole point of having a single Court at the apex of the nation’s judicial hierarchy: It can resolve novel legal questions that aren’t settled by existing court decisions.
Moreover, while there is some uncertainty regarding when state judges can be sued, the Court’s decisions do suggest that a lawsuit should be permitted under the unusual facts presented by Whole Woman’s Health. In Mitchum v. Foster (1972), the Court explained that one of the federal judiciary’s roles is to “protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’” Federal court injunctions binding state officers are especially justified when deemed “essential to prevent great, immediate, and irreparable loss of a person’s constitutional rights.”
Plus, all the doctrines that Texas relies on to frustrate judicial review — a rigid form of sovereign immunity, and the way to get around sovereign immunity laid out in Young — are judicially created doctrines than can be tweaked by the Supreme Court at any time. (Although the 11th Amendment does provide for some form of sovereign immunity, its text does not immunize Texas from suits filed by its own citizens.)
One possible reason why the Court might not want to resolve this question right away is that Whole Woman’s Health arrived on its shadow docket. The question of when private plaintiffs may sue state court judges in federal court is a difficult one that the Court should probably think about for more than three days.
But we are long past the point where the Court avoids resolving difficult legal questions in shadow docket orders. During the pandemic, the Court handed down a pair of shadow docket decisions that completely revolutionized its approach to “religious liberty” cases, severely limiting a seminal Supreme Court precedent in the process.
Similarly, the Supreme Court on August 24 ignored decades of prior decisions warning that judges should be very cautious about interfering with American foreign policy, effectively ordering the Biden administration to open diplomatic negotiations with Mexico to reinstate a Trump-era immigration policy that the new administration tried to end. This decision was also handed down on the shadow docket.
The Roberts Court, in other words, is perfectly willing to make sweeping legal pronouncements in shadow docket orders when conservative litigants ask them to do so. But now that a group of litigants who are hated by conservatives asked the justices to hand down a similar order, the five most conservative justices insist upon judicial modesty.
Moreover, had the Court wanted to take more time to weigh the question of when state court judges may be sued in federal court, the justices could have given themselves that time. As Roberts writes in his dissenting opinion, the Court should have issued a temporary order that will “preclude enforcement of S. B. 8” while this case makes its way through the ordinary litigation process rather than being rushed through in a shadow docket order.
That way, the Court would avoid making a sweeping pronouncement about abortion rights — and about whether states can use clever procedural tricks to dodge litigation — without full briefing, oral argument, or more than a few days to consider the case.
It’s tough to imagine the Court allowing a law like this on anything but abortion
There’s also a profound practical reason why the Supreme Court should not bless laws like SB 8 — and why it almost certainly would not bless a similar law that applied to a topic other than abortion.
Imagine, for example, that New York passed a law permitting “any person” to sue gun owners and collect a $10,000 bounty from those gun owners. Or, for that matter, imagine if a state allowed anyone to file a lawsuit against Justice Samuel Alito, seeking a $10,000 bounty every time Alito used the word “the.”
Does anyone think this Supreme Court would rule that a law authorizing thousands of harassment suits against gun owners is compatible with the Second Amendment? Or that it would force those gun owners to hire lawyers and litigate a seemingly endless stream of lawsuits to avoid paying a bounty?
Similarly, does anyone think this Court would allow one of its own members to be bombarded with lawsuits whose sole purpose is to hound him and impoverish him with legal fees?
With their decision in Whole Woman’s Health, the justices have unleashed a monster. If taken seriously, that decision would allow any state to subject any person or institution to an overwhelming wave of lawsuits that they cannot possibly defend against. SB 8 is a direct attack on the rule of law and the principle that everyone should have their day in court before they are punished by the state.
It’s an attack on the 14th Amendment, which provides that no state may “deprive any person of life, liberty, or property, without due process of law.”
But, of course, if a state were to target gun owners, or Alito, or anyone else the Supreme Court’s most conservative justices approve of, the Court would almost certainly step in to protect a conservative litigant. Just last month, in Chrysafis v. Marks, the Supreme Court blocked part of New York state’s eviction moratorium because it “denies the landlord a hearing” before that landlord is required to house an unwanted tenant.
The Supreme Court is quite protective of due process — when the right litigant seeks the Court’s protection. One of the most disturbing things about Whole Woman’s Health is that it suggests the Court has abandoned its most fundamental principle: equal justice under law.